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Nova Scotia justice appointed to Supreme Court

The Canadian Press
Published Monday, December 22, 2008 6:50PM EST

OTTAWA - Stephen Harper has finally made Thomas Cromwell's appointment to the Supreme Court of Canada official -- without subjecting him to a public hearing the prime minister had promised to hold on the appointment.

Cromwell, a widely respected former judge of the Nova Scotia Court of Appeal, will take the seat vacated by New Brunswick's Michel Bastarache.

Bastarache, who announced his resignation in April following a bout of heart trouble, said as he departed that he hoped a successor would be chosen quickly.

But the process bogged down in political bickering for eight months until Harper declared Monday that the time had come to act.

"The Supreme Court must have its full complement of nine judges in order to execute its vital constitutional mandate," the prime minister said in a written statement.

Opposition MPs and academics were unanimous in their praise of Cromwell, a judicial centrist renowned for clear and thoughtful rulings. But they had little good to say about the way Harper went about the selection.

"I can only express disappointment at the process," said Peter Russell, a retired University of Toronto political scientist and veteran court-watcher.

"We're still immature in this country in the way we go about appointing Supreme Court judges. We look like a bunch of amateurs."

The Conservative government announced last summer it would set up an all-party committee of MPs to vet candidates in private and develop a short list for the prime minister to choose from.

But the panel didn't meet until September, and then it started wrangling over its own makeup. Harper and Justice Minister Rob Nicholson cut the deliberations short and announced, on the eve of the last election, that they had settled on Cromwell as their man.

The nomination was put on hold with a promise that Cromwell would later face a public hearing by a different parliamentary panel before assuming his post.

The new committee, as it turned out, was never formed. It fell by the wayside when Harper suspended Parliament in early December to avert a confidence vote that threatened to topple his minority government.

In the meantime, Cromwell had missed the fall session of the Supreme Court that began in October. He would have missed another session that starts in mid-January if there had been any further delay.

Harper said he personally consulted Liberal Leader Michael Ignatieff before taking action Monday and received assurances the Grits would "welcome" an immediate appointment.

Brian Murphy, the Liberal justice critic, said there was little choice, given the pressing need to bring the court back to full strength and the impeccable credentials of Cromwell.

"He's a great choice, bilingual, steeped in the law, a track record at the court of appeal, the whole it," said Murphy. "Perfect. Great appointment."

Joe Comartin, the NDP justice critic, agreed Cromwell is well-qualified but said he could have started work months ago if the Tories had handled things better.

Co martin accused Harper of playing politics by short-circuiting the closed-door work of the vet ting committee in September, then pretending that a later public hearing would provide for the same kind of parliamentary input.

In fact, said Co martin, the public hearing would have been a charade, with MPs holding no veto power over the nominee and severely restricted in the kind of queries they could pose.

"Any questions we'd be interested in asking would, in effect, be out of order."

Prime ministers have traditionally had a free hand in appointing Supreme Court judges, but debate has raged for years about how to make the process more transparent and democratic.

Paul Martin was the first to establish a formal vet ting committee to screen candidates in private. Harper added the idea of a second hearing in public when he chose Mar shall Rothstein as his first nominee to the court in 2006.

Rothstein sailed through the hearing with few searching questions and no opposition from any MP. Most observers expected the same outcome for Cromwell.

Ed Rats, a University of Ottawa law professor, said that suggests the new approach is no real improvement over the traditional practice of letting the prime minister choose on his own.

"I'd be quite pleased to just go back to doing it the old way," said Rats. "The fact is that prime ministers have made very good appointments . . . with or without the window dressing of a parliamentary committee."